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3 Ill.L.R. 347 (1908-1909)
Date of Separation of Ecclesiastical and Lay Jurisdiction in England

handle is hein.journals/illlr3 and id is 283 raw text is: THE DATE OF SEPARATION OF ECCLES- IASTICAL AND LAY JURISDIC- TION IN ENGLAND By WALTER LICHTENSTEINa Investigations in the history of the ecclesiastical court§ in Eng- land have led the writer to doubt the view generally held that a charter of William I. separated the church courts from the lay courts. While the theory advanced in these pages, cannot be considered proved, it may shed a little light on a very obscure point. In order to obtain a proper perspective, the relation of eccle- siastical and lay courts in Anglo-Saxon times must be considered. When compared with the clergy of the Continent, the Anglo-Saxon clergy hardly seem a separate order. They did not feel themselves to be distinct from the rest of humanity. It is true that there were separate ecclesiastical courts even before the Conquest, but their functions were merely disciplinary, and they claimed no jurisdic- tion in either criminal or civil causes. There would have been, indeed, little need for such a claim, since the bishop sat in the shire court as presiding officer together with the sheriff. As the former was frequently the abler man, it can readily be supposed that his influence often predominated. There are also indications that the priest, reeve and four men from each township attended this court. Aside from this close connection in judicial matters there was not the cause for conflict between Church and State in the Anglo-Saxon period that existed later, and the close connection of the bishop with the secular jurisdiction, and of the church council with the Witenagemot were rather results than causes of an absence of caste feeling. The fact that few of the clergy obeyed the canons of the Church relating to celibacy, was a powerful factor in uniting clergy and people. The intercourse with Rome was slight. Here and there papal authorization was sought, perhaps to found a new archbishopric or the like, but of appeals to Rome in matters of legal jurisdiction there is no indication, except at the end of the Anglo-Saxon period. It must be remembered that before the Conquest the papacy was frequently the puppet of aristocratic factions in Rome, and if now and then an able man did occupy the papal chair, his attention was claimed by projects more weighty than the furthering of his inter- aLibrarian of Northwestern University. 347

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